SARA BRONIN: Hi.
I'm Sara Bronin, and I created this Property Law 101 series
to help you learn a little bit about the basics of property
law.
We have categorized our sessions into four big categories
covering four questions in law.
And today we're covering the third one,
which is using property.
And we are focused on covenants.
So a covenant-- a type of servitude,
which we've considered in another video--
but a covenant is a legal agreement
between private parties that runs with the land.
Generally, that means covenants burden successive owners.
Again, they are not created by the state.
They might be agreed upon by successors in interest.
They might be agreed upon by like minded condo owners.
They might be created by developers building
subdivisions-- so large residential areas--
that might eventually be governed
by homeowners associations.
Covenants are not exclusively residential I should say,
but we focus a lot in our cases, in our discussion
on residential covenants.
So covenants on properties-- so what do they say?
There's a few things that typical covenants say.
So a covenant might articulate what kinds of improvements
you can make to your unit, to your property.
For example, if you're within a homeowner's association
or a condo unit, it might say that you
can change the wallpaper or change light bulbs
but that you have to get permission from an association
to move plumbing or make major changes
or to change a supporting wall or to alter
the exterior of the building.
Covenants might also impose limits
on the number of people who can live
in the house and their relationship to you.
There might be also procedures established
in covenants for things like architectural review
of interiors.
So how are covenants like and unlike easements
covered in other videos in the series?
So covenants, like easements, allow
neighbors to deal with the external costs
of conflicting resource use.
However, there are differences between easements
and covenants.
Unlike easements, covenants are always express.
Covenants are subject to the statute
of frauds much more strictly applied
to covenants than to easements.
As we discussed in other videos, easements
can sometimes be implied or they can be created through estoppel
even without a writing.
Also unlike easements, covenants often
involve many different people.
They often burden an entire neighborhood
under the same rules but still, more than just two parties.
In an easement, it's usually just
two parties, maybe a handful more--
but again, often a servient owner and a dominant owner
and that's about it.
One of the old doctrinal questions in the law
of covenants--
one that is growing less and less important over time--
is whether a covenant, whether the promise,
is an equitable servitude or a real covenant.
I don't spend a lot of time on this in property class
because these two strands of covenant theory
are merging into one area almost as if there's
no distinction between law and equity anymore.
But I flag it as a point of interest
and possibly as a continuing item on the bar exam.
One of the significant questions in covenant litigation
is whether the covenant runs with the land.
So this is one of the requirements
of traditional covenant law.
In other words, do the covenants bind just the original parties
to them.
Or do they create property interests
that attach to particular parcels so that they burden
and/or benefit successor owners?
A court might look at the intent of people
entering into the covenant in trying to answer this question.
It might look at the requirement that the covenant touches
and concerns the land.
It might also look to privity--
this is a concept that's pretty familiar to you
I would assume--
through contract law.
But again, privity is about the relationship between parties
and whether they have a special bond
through perhaps something like a real estate transaction
or some other arrangement or relationship that demonstrates
that the covenant should bind people
beyond the original parties.
So there is the traditional requirements for covenants
that we've just briefly touched on here.
Courts supply some or all of these
in sometimes confusing ways.
So I encourage you to consider the approach of the Third
Restatement of Property, which is covered
in another video in the series.
And through the Third Restatement
you might find clarity that you don't
find in the requirements for covenants
that are traditionally set out in legal Doctrine
So I'm going to leave it there.
I would love to hear from you whether on Twitter
or through my website where you can sign up to my mailing list.
See you next time.